Board Minutes

November 16, 2012
Capitol Plaza Hotel, Jefferson City

Members Present:
Patrick B. Starke, President
P. John Brady, President-Elect
Reuben Shelton, Vice-President
Lynn Whaley Vogel, Past President
Keith A. Birkes, Secretary

Bevy A. Beimdiek
Thomas V. Bender
Erik Bergmanis
Suzanne B. Bradley
Hon. Richard Bresnahan
Nicole Colbert-Botchway
Mark W. Comley
Hon. Charles Curless
Dana Tippin Cutler
Joel R. Elmer
Brian Francka
Michael E. Gardner
Wendy Garrison
John W. Grimm
James H. Guest
John R. Gunn
Hon. John F. Kintz
Mark H. Levison
Gregg F. Lombardi
Neil F. Maune, Jr.
Mira Mdivani
Hon. Mark H. Neill
Douglass F. Noland
Joseph P. Rice, III
Tricia M. Scaglia
Walter R. Simpson
Antwaun L. Smith
W. Douglas Thomson
Raymond E. Williams

Attending by Telephone:
Robert J. Buckley
Genevieve M. Frank
Edward J. Hershewe
Robert S. Kenney
J. B. Lasater
Max E. Mitchell
Nancy R. Mogab
Brett W. Roubal
Eric J. Wulff

Members Absent:
Wallace Squibb
Joan M. Swartz

Also Present:
Millie Aulbur
Sebrina Barrett
Catherine Barrie
Lucas Boling
Anne Chambers
Farrah Fite
Kent Hopper
Chris Janku
Dan Lehmen
Jeff Markway
Linda Oligschlaeger
Delores Shepherd
Robert Stoeckl
Gary Toohey
Eric Wilson
1.           Minutes:

It was moved and seconded that the minutes from the Board of Governors meeting of October 17 and the minutes of the Executive Committee meetings on October 17 and 19 be approved. The motion was approved.

2.            Consent Agenda:

It was moved and seconded to adopt the consent agenda containing appointments to the Complaint Resolution Program Committee and the Press-Bar Commission. The motion was approved.

              A.          Complaint Resolution Program Committee

Greg Dorshorst was reappointed for a second term on the Complaint Resolution Committee.

              B.          Press-Bar Commission

Theresa Levings was appointed to the Press-Bar Commission to fill the vacancy created by the expiration of John Black’s term.

3.           Client Security Fund Committee Appointment:

Two candidates were recommended and eligible to fill the vacancy created by the expiration of Nancy Gonzalez’s first term. It was moved and seconded to approve the appointment of Lisa Machicao as recommended by the Executive Committee. The motion was approved.

4.           February Appointments:

There were no February appointments.

5.            Officers' Reports:

              A.          President's Report

                              (1)         Summary of Efforts to Protect the Non-Partisan Court Plan and Future Efforts

Mr. Pat Starke complimented the Board regarding its collective support of efforts to oppose the SJR 51/Amendment 3 initiative and to protect the Non-Partisan Court Plan. He reported that the opponents of the plan are expected to initiate additional attacks in the future, including the possibility of an effort to require the election of all judges within the state.  Mr. Starke warned that continued vigilance will be needed. He reported that the Missourians for Fair and Impartial Courts Committee will be holding a meeting at the end of the month to review efforts and actions taken in opposition to Amendment 3 and to discuss future directions. He encouraged members of the Board to provide any thoughts or feedback related to these issues, so he can share this feedback with this group.  

                              (2)         Private Lawyer Appointment in Criminal Cases

Mr. Starke reported on efforts to address the issues related to the appointment of private practice attorneys in criminal cases. He reported that a small Board committee, chaired by Judge Charles Curless, has been formed to explore and eventually recommend actions for  The Missouri Bar to take to assist attorneys who do not practice criminal law, but who are appointed by one of Missouri’s circuit courts to provide counsel to indigent defendants. Judge Curless reported that the committee is focusing on four main issues: (1) exploring solutions to professional liability challenges for appointed lawyers, (2) facilitating criminal law related CLE programming and resources for appointed lawyers who do not practice in this area, (3) developing a “pattern rule” that establishes standardized appointment practices for use by circuit courts, and (4) taking a leadership role in urging the Governor and Missouri Legislature to address long-term solutions to provide adequate funding for the constitutionally required defense of indigent citizens in criminal matters.

Mr. Starke also reported that a meeting is planned with Attorney General Chris Koster to discuss appointed attorney eligibility for professional liability protection under the State Legal Defense Fund. He also reported on a meeting with The Bar Plan regarding that organization’s capability to provide assistance with professional liability challenges facing appointed lawyers. It was further reported that Jennifer Bukowsky, a Columbia criminal defense lawyer, has completed a CLE training video to assist appointed lawyers and that the video will be posted on The Missouri Bar website. It was further acknowledged that The Missouri Bar can play a leadership role in facilitating movement toward long-term solutions, which must ultimately come from state lawmakers.

                              (3)         Miscellaneous

                                            (a)         Board Biographical Information

Mr. Starke reported that some Board members had not yet returned the biographical form which they had received earlier in the fall and he asked that the forms be completed and returned.                   

                                            (b)         Amicus Lex Program – Formerly Key-Person Program

Mr. Starke reported on the implementation of the Amicus Lex program, designed to establish ongoing relationships among key Missouri lawmakers and members of the Board of Governors, YLS Council and lawyers within the bar. He noted that the objective is to establish relationships before communication is needed on an issue, a bill, or matter of importance to The Missouri Bar and the justice system.

He explained that a list has been provided to match members of the Board of Governors and the YLS Council with 100 legislators. He noted that members of the Board and YLS Council are asked to take the following actions: (1) select one or more legislators from the list, (2) arrange to meet with that legislator over breakfast or lunch sometime in the next few months, and (3) identify two or three other lawyers who already have a relationship with that legislator. He noted that Board members may need to be flexible regarding their selections, depending on matching needs. He reported that the list of 100 legislators consists of: all 34 senators, Missouri House leadership, including the legislative and budget committees, all lawyer-legislators and all newly-elected legislators. He noted that this first meeting should be used to get acquainted and begin a relationship by offering assistance. In addition it was suggested that a list of talking points would be helpful. Mr. Starke, Ms. Barrie and Mr. Wilson reported on other resources that are available and may be helpful in this initiative. The resources included:  (1) access to a map that superimposes Board districts with legislative districts; and (2) a link to the Ethics Commission website to identify key donors to the legislator’s campaign.

It was further reported that Missouri Bar Legislative Staff would be able to provide additional detailed information on each legislator as needed. Mr. Starke reported that it is anticipated that Board members will be able to report on the progress of this initiative when the Board meets in February.

              B.          President-Elect's Report

Mr. Jack Brady reported that he plans to focus on increasing the relevance of The Missouri Bar to large law firms and to the business community within the state. He reported that he would like to create a committee to focus on these issues, including increasing the involvement of large firm lawyers on the Board of Governors and within bar activities, so the bar can benefit from the knowledge and talent within the large firms. He noted that establishing more involvement and stronger relationships with the business community across the state would prove beneficial in efforts to protect the Non-Partisan Court Plan and on other issues affecting justice in the state.

He further reported on an effort to change the focus of The Missouri Bar website, making it more interesting, useful and beneficial to the general public. This change in focus would position the site as a resource to better explain and foster understanding of the justice system, also creating potential benefits when the justice system comes under attack in the future.  

Mr. Brady also plans to focus on issues related to aging lawyers, establishing a group consisting of outstanding, experienced lawyers from geographically identified areas and younger lawyers, to provide assistance and resources to aging lawyers involved in winding down their practices.

              C.          Vice-President's Report

Mr. Reuben Shelton reported that his primary focus will be to support the president and his agenda. He reported that Mr. Starke has asked him to organize a legislative day at the Capitol in Jefferson City. He reported that once the logistics are in place, members of the Board will be contacted to participate.

              D.          Deputy Executive Director's Report

Ms. Sebrina Barrett reported that the Trustees of The Missouri Bar, the entity that owns the The Missouri Bar headquarters building, have made a decision to expand the Missouri Bar Center, adding a third floor. She reported that an architect was hired last spring to develop the plans for the expansion and a bidding process was initiated to hire a general contractor to perform the construction. She reported that a decision on the general contractor for the project is expected as early as next week. The plans anticipate starting construction in December, subject to weather and procurement of materials, and the anticipated completion date is June 30, 2013. Ms. Barrett reported that the additional floor is designed and will be used as flexible space accommodating meetings and events such as on-site CLE programs, board and committee meetings, member events, meals and social activities, and staff meetings. She reported that the plans include technological capabilities to support the multiple functions that the space will accommodate and a technological infrastructure designed to accommodate changing technological needs in the future. Ms. Barrett anticipates that this space will be the venue for the Board dinner preceding the meeting in the fall of 2013.  

              E.          Executive Director's Report

Mr. Keith Birkes thanked members of the Board of Governors for the lithograph presented to him at the Board dinner. He assured that the gift will be treasured along with the wonderful memories of working with the Board.

6.        Legislation:

Ms. Catherine Barrie reported that there is no new bar-drafted legislation for consideration at this meeting. She reported that efforts are under way to identify sponsors for the Probate and Trust Committee drafted bill that was approved for filing at the October 17 Board meeting. She also reported that the Commercial Law Committee has chosen to withdraw the legislation regarding the amendment of statutes on transcripts of judgments rendered by associate circuit courts. She noted that the proposed legislation, which the committee deferred in October, was opposed by the Missouri Land Title Association (MLTA) and that the committee anticipates drafting  and submitting a revised version, which reflects consensus with MLTA concerns, at a later date.  Ms. Barrie reported that the Missouri Legislature Joint Interim Criminal Code Committee issued its report related to the update of Missouri’s criminal code. She reported that the joint committee report concluded that a measure drafted by the Missouri Bar Criminal Code Committee was a good start, but that this legislation needs to be amended to address issues that were raised during six weeks of public hearings on the code update. She further reported that the co-chairs of the Joint Interim Criminal Code Committee - Rep. Stanley Cox and Sen. Jolie Justus - are expected to sponsor the final version of the bill when it is ready to be filed.

7.        Committee Reports:

              A.          Client Security Fund Committee

Mr. Chris Janku reported that as of November 7 the Client Security Fund Committee received 87 claims for the year. The committee recommends the payment of 33 claims for a total of $224,935.75, the denial of 14 claims, and the deferral of 21 claims until the February 2013 Board meeting pending receipt of additional information. It was moved and seconded to approve the payment, denial and deferral of claims as recommended. The motion was approved.

Mr. Janku further reported that the committee met on multiple occasions to discuss the recovery of money from attorneys against whom claims have been paid. He reported that the committee reviewed recovery actions in other states and in the states that do attempt recovery, a modest amount in excess of expenses can be recovered over time. This review also found that states differ as to the legal authority and the entity tasked with client security fund responsibilities. In some states, the client security fund is administered by the state bar association, while in others responsibilities lie with the disciplinary office or the state supreme court. He reported that the committee discussed its legal authority to obtain and enforce judgments against lawyers based upon payments from the Fund, specifically addressing whether a decision on a claim by this committee and the approval of the Board constitutes a legal judgment or whether it would be necessary to prove a claim in court to obtain a valid judgment. Mr. Janku reported that the committee concluded and recommends that the Board of Governors obtain a legal opinion on the Client Security Fund Committee’s authority as to the issue of judgments, before the committee makes a final recommendation to the Board of Governors about whether to institute a recovery of money process in Missouri. Mr. Starke reported that the Executive Committee has approved this recommendation, will seek a legal opinion, and will report back to the Board.

              B.          Board Liaison Reports

                              (1)         Property Law Committee

Mr. John Gunn reported that this committee, chaired by Tim Sigmund, has more than 400 members. He reported that the main focus of the committee is to conduct CLE programming related to real property issues, including presenting an Annual Real Estate Law Institute. The committee is also considering expanding these educational activities to include programming using a webinar platform. He further reported that the committee plans to collaborate with other committees on matters that overlap, including teaming with the Tax Law Committee on issues of mutual interest. He reported that the chair is reactivating the committee’s legislative subcommittee, appointing a new chair for that group.

                              (2)         Civil Practice and Procedure

Mr. Douglass Noland reported that this very active committee has been chaired by Susan Ford Robertson for many years, that Ms. Robertson does an excellent job, and that Zach Bickel has been appointed as a co-chair. He reported that this committee has for the past several years teamed up with the Tort Law and Transportation Law Committees to present joint CLE seminars at the Spring and Fall Committee meetings and that this collaboration has been very successful. He reported that the committee would like permission to research, review, and provide a report, first within the committee, on the application or use of interlocutory appeals procedures in Missouri either by rule or by statute and, depending on the results of this effort, provide the report to the Board of Governors. Mr. Starke noted that this type of activity is within the authority of the committee, so permission is granted.

                              (3)         Transportation Law Committee

Mr. Joseph Rice reported that the Transportation Law Committee meets regularly with the Tort Law and the Civil Practice and Procedure Committees as reported by Mr. Noland and in previous reports on the Tort Law Committee from Mr. Hershewe. He reported that the joint CLE programs presented by these three committees are outstanding and that the joint collaborative effort employed by the committees works very well. He reported that Ted Agniel is the chair and does a very good job.  

                              (4)         Fee Dispute Resolution

Mr. Rice also reported on the Fee Dispute Resolution Committee, noting that members of the Board briefly heard about the work of the committee from the chair, Gary Stamper, at lunch. He reported that Mr. Stamper and the members of the committee are doing a fine job.

                              (5)         Media Committee

Ms. Suzanne Bradley reported that the Media Law Committee, chaired by Mark Sableman, did not schedule a meeting for today because many of the members were attending the Media Law Resource Center Annual Meeting in New York. She noted that this is a very hard working committee with expertise that proves valuable especially in regards to media-related legislation and following developments related to cameras in the courtroom.

                              (6)         Patent, Trademark and Copyright Law

Ms. Bradley also reported on the the Patent, Trademark and Copyright Committee, noting that the committee is chaired by Janet Hendrickson. She reported that the committee did not meet today, but held a joint meeting with the Technology and Computer Law Committee last May and plans to meet at the next Spring Committee Meetings. She further reported that the committee presented a CLE on the intellectual property rights on the interactive web.

                              (7)         Legislative Committee

Mr. Reuben Shelton will report on this committee at the next meeting.

                              (8)         Solo and Small Firm Committee

Mr. Walter Simpson commended the outstanding and active work of this committee, noting the tremendous value and success of the Solo and Small Firm Conference held each summer. He reported that he attended last year’s conference in Branson and was extremely impressed with the information and choice of CLE offerings available to attendees, and he recommended that Board members attend the conference. He reported that the committee did meet today and is well on its way to developing the line-up for the 2013 conference. He also noted that Lucas Boling is now the staff person responsible for the conference, succeeding Linda Oligschlaeger who has done a tremendous job of leading and building the conference since its inception.

                              (9)         Family Law Section

Mr. Antwaun Smith reported that the Family Law Section has a new chair, Susan Jensen. He reported that Ms. Jensen intends to focus on several major goals throughout the year:

- providing CLE, including shorter web-based offerings
- fulfilling the Section’s role in the area of legislation
- focusing on issues affecting members of the military and their families
- producing two online versions of the Section newsletter
He further reported that Ms. Jensen would like to establish broader input at an earlier point in the development of legislative proposals, including input from family practitioners throughout the bar, other bar associations, and from legislators. He reported that work is underway on the Family Law Conference, scheduled for August and noted that the conference has grown in attendance to more than 400 in recent years.

                             (10)      Elder Law

 Mr. Doug Thomson reported that the Elder Law Committee is chaired by Reg Turnbull, who has brought a high level of energy to a committee which has always been very active. He reported that the committee participated in the National Healthcare Decision Day in 2012, spreading the word about the value of the DPOA and making healthcare wishes known. The committee plans to participate again in 2013. He further reported that the committee developed an Elder Law Institute, which was successful and will be presented again next year. They plan for a spring webinar on Medicaid, produced three excellent online newsletters for committee members, and established a subcommittee to ensure consistency in the transition of leadership for the committee.

                             (11)      Lawyer Referral Service

Mr. Ray Williams commended the work of The Missouri Bar Lawyer Referral Service, explaining that the service provides the public with a resource for finding a lawyer. He noted that the service can be contacted by telephone and online and 225 lawyers participate. He explained that for a $25 fee, a member of the public is matched with a lawyer for a 30-minute consultation. If fees to the lawyer exceed $200, 10 percent of the fees are paid to The Missouri Bar for the service. He further reported that the fee was waived for those affected by the Joplin tornado last year. He reported that the service had 6,200 calls so far this year and referred 389 cases. Lawyers received more than $124,000 in fees from referrals between January and October of this year. Fees to The Missouri Bar totaled more than $13,000 from the 10 percent fee arrangement and almost $6,000 from referral fees. He commended Ms. Suzanne Creech, who staffs the program.  

                             (12)      Legal Research

Mr. Eric Wulff reported that the Legal Research Committee is chaired by Steve Scott and did not meet. The committee does not have any issues or matters for the attention of the Board at this time.

                             (13)      Computer and Technology Law Committee

Ms. Wendy Garrison reported that the Computer and Technology Law Committee held a joint meeting with the Patent, Trademark and Copyright Law Committee last May, presenting a program on intellectual property issues related to interactive online media. She further reported that the committee did not meet today, but plans to meet at the 2013 Spring Committee Meetings.  

              C.          Additional Committee Reports

                              (1)         Military Veterans

Mr. James Guest, liaison for the Military Law Committee, reported on the development of an initiative to provide pro bono legal assistance to members of the military. He reported that the Oklahoma Bar and the Texas Bar both have programs and the approach would be to develop a program in Missouri modeled after the Oklahoma Bar. Mr. Guest reported that he met today with Tom Rynard, chair of The Missouri Bar Military Law Committee, Lou Defeo of the Samaritan Center in Jefferson City, and a representative of the Missouri National Guard to discuss actions moving forward. He reported that this group intends to meet by telephone with representatives of the Oklahoma Bar sometime in the next six weeks to learn more about that program. This group will also focus and decide on three threshold issues related to such a program:

(a)  Who will be served by this program (e.g. active duty, veterans, returning vets, their families, etc.?)
(b)  Eligibility criteria to receive assistance
(c)   What legal services will be provided (e.g. family, estate planning, etc.?)

Mr. Guest also reported that the Oklahoma Bar has a designated person who handles the program in terms of screening for services and making referrals, and he anticipates that an infrastructure providing similar services will be needed for any such effort to be viable within Missouri. He reported that a report and/or proposal will be provided at the next meeting of the Board of Governors.

                            (2)         Delivery of Legal Services Committee

Mr. Gregg Lombardi reported on the work of the Delivery of Legal Services Committee to expand pro bono services and to expand the recognition of members of the bar who have performed pro bono services. He reported that only 200 lawyers voluntarily reported the number of pro bono hours performed in 2011 and that the DLS Committee is hoping to expand this number by working with large firms to make it possible to report their attorney’s hours collectively. Similarly, the committee is working with the legal aid offices to ensure that their attorney hours are reported. The committee is considering proposing some additional ideas to increase participation, including developing a pro bono competition among lawyers and law firms and exploring the possibility of granting CLE credit for pro bono work performed.  

                            (3)         Lawyers in a Changing Economy Committee

Mr. Raymond Williams provided a brief demonstration of the first practical skills video module produced for the program. He also provided a link to the practical skills section on the Missouri Bar website.

8.        Western District Diversity Seat Vacancy:

Twenty-one lawyers submitted letters of interest and were under consideration to fill the remainder of the term for the Western District diversity seat on the Board of Governors, which became vacant as a result of the election of Mira Mdivani to the Board from the Kansas City district. After multiple ballots, the Board of Governors elected Mr. Rod Chapel to fill the current Western District vacancy.

9.        Update on CLE Programs:

Ms. Dee Shepherd provided statistical information related to the MoBarCLE programs presented annually. She reported that MoBarCLE presented more than 440 programs in 2012. She reported that programming utilized a wide range of platforms to accommodate the needs of members, including live seminars, webinars, telephone seminars and conferences. She noted that 53% of the CLE programs were live seminars, allowing for face-to-face networking in addition to the educational training, and that MoBarCLE has for many years teamed up with an organization named WebCredenza to provide advanced level training via the Internet.  She further reported that more than 14,000 lawyers attended MoBar CLE programming in 2012, more than 900 lawyers are part of the presenter database, and MoBarCLE helped many lawyers under the financial hardship policy. She noted that MoBarCLE provided such lawyers with approximately $50,000 in no-cost or discounted CLE in 2012.

10.        Determination of the Allocation of the 2012 Pro Hac Vice Fee Receipts:

Mr. Starke reviewed the action taken by the Board of Governors in 2011 that resulted in an increase in the pro hac vice fees for out-of-state lawyers wishing to appear in Missouri and adjusted the policy for use of the funds generated by the fees, voting that Legal Services would in perpetuity receive a minimum allocation of funds equal to the 2010 allocation and, if in any year, the fees generate funds in excess of the 2010 allocation level, those excess funds will be split with 80 percent allocated to Legal Services and 20 percent of the excess funds allocated at the Board of Governors' discretion. Mr. Starke reported that the 20 percent of excess funds collected in 2012 amount to approximately $40,000. It was moved and seconded that these funds be set aside for use in defending attacks on the Non-Partisan Court Plan, if needed. The motion was approved.

11.        Finances:

              A.          2013 Budget

Mr. Erik Bergmanis reported on the financial status of The Missouri Bar, noting that expenditures are still expected for the new ecommerce system and from the Annual Meeting. He stated that 75 percent of the budget has been spent at this point in the year and projected that the end of the year financial status will be within budget. He also reported that at the close of 2012, Missouri Bar reserves will be approximately $2.2 million and, if the 2013 budget is approved as presented, the reserves at the end of 2013 are expected to be approximately $1.124 million, the lowest reserve level ever for The Missouri Bar.

He pointed out a minor adjustment in the proposed 2013 budget, reporting that a $9,000 reduction in the cost associated with the economic survey is expected and reported that MoBar Publications will return a profit in 2012, commending Kent Hopper for this accomplishment.

He also reported that $315,000 has been collected in pro hac vice fees for 2012, a higher than anticipated amount and a significant increase over the $132,000 collected in 2010 and $130,000 collected in 2011.

It was reported that approximately $500,000 remains available in 2013 should it be needed to respond to an attack on the Non-Partisan Court Plan with about half that total in an equity account. In addition, it was reported that the Missourians for Fair and Impartial Courts also have approximately $500,000 available for any needed response, resulting in a combined total of approximately $1 million available in 2013.

Mr. Starke commended Erik Bergmanis’ work and service as treasurer for at least seven years.

At this point, the Board of Governors went into Executive Session to discuss salary matters in the proposed 2013 budget. At the conclusion of the Executive Session, it was moved and seconded to approve the 2013 budget as proposed by the Finance Committee. The motion was approved.

              B.          Transfer of Signature Authority

It was moved and seconded to transfer signature authority for The Missouri Bar from current Executive Director Keith A. Birkes to Deputy Director and incoming Executive Director Sebrina A. Barrett as soon as necessary. The motion was approved.

12.        Other Business:

Ms. Sebrina Barrett offered comments in honor of and in gratitude to Keith Birkes and presented Mr. Birkes with several gifts upon the occasion of his retirement as Executive Director after 27 years of service to The Missouri Bar.  


There being no further business, the meeting was adjourned.

Respectfully submitted,


Sebrina A. Barrett, Secretary